September 14, 2015; New York Times

Lawrence Lessig’s campaign to clean up campaign finance will never find itself short of examples of existing and planned abuses aimed to increase the flow of big money into elections. The latest is the Democrats’ plan, a request to the Federal Election Commission for approval for a bunch of new Super PACs for Democratic Senate and House seats. The request makes the idea of PAC that is not connected to a candidate’s official campaign just about obsolete.

Writing for the New York Times, Nick Confessore explains in a few paragraphs the territory that the Democrats are trying to claim, based on their contention that the Republicans already do this:

The filing…suggests that Democrats would, if allowed, seek to use tactics pioneered by Republican presidential candidates this cycle, helping prospective candidates establish and raise money for super PACs before they officially declare their intent to run.

Most strikingly, the lawyers are asking the commission to clarify how declared candidates, their campaign staff and their volunteers can help court donors for independent super PACs—even whether a candidate could be the “special guest” at a super PAC “fundraiser” with as few as two donors. Its answer could have profound ramifications for the 2016 campaign, particularly for Democrats who, like Hillary Rodham Clinton, have been reluctant to engage too closely with super PAC fund-raising.

In seeking the commission’s guidance on the tactics, Democrats contend that most of the activities their request describes—like having a candidate pretend to “test the waters” of a candidacy for months on end while raising money—appear to violate the law.

But if federal regulators determine that such practices are legal, the lawyers wrote, Democratic candidates up and down the ballot are prepared to adopt these tactics in the coming months, a blunt admission that the party cannot compete effectively if it forgoes campaign and fundraising tactics already widely used by Republicans.

Much like Barack Obama’s decision to forgo public financing of his campaigns so that he could raise—successfully—unfettered private contributions because the Republicans might do the same or would outraise his campaign through sources such as “independent” PACs, much like the Democrats’ creation of counterparts to Karl Rove’s American Crossroads, and like Republicans virtually inventing the array of 527 “stealth PACs,” this is the Democrats again showing no reluctance to ape the practices of the opposition despite their deleterious effects not only on the practice of campaign finance, but on the behavior of political candidates who already feel beholden to and beleaguered by their big money donors. In this instance, the fig leaf of distance between the candidates and the PACs will be gossamer-thin.

Confessore describes several instances of Republican presidential wannabes in this electoral cycle who have used PACs while “exploring” their candidacies when it was all but obvious that they were actually running—Governor Scott Walker, Carly Fiorina, John Kasich, and Jeb Bush, to name but a few. In some cases, it seems the coordination between candidates and ostensibly independent PACs continued past the exploratory phase. Perhaps, as the Campaign Legal Center’s Larry Noble told Confessore, the Democrats’ pitch to the FEC is meant to expose and embarrass the Republican strategy that looks pretty close to illegal, though expecting the bitterly divided FEC to prosecute current candidates and their PACs is wishful thinking. This might really be a strategy to get the FEC to simply declare the Republicans’ approach beyond the pale. However, Noble says that the effort to embarrass the Republicans might be in tandem with getting approval for Democrats to do it themselves. There is little question, as pointed out by Alixandria Lapp, the executive director of the House Majority PAC, that “the level of coordination going on is just unprecedented.”

Other than possessing, one hopes, a core belief in the remaining shreds of integrity left to the American democratic process, nonprofits have much at stake in this latest perversion of campaign finance. To the press and to the public, the mechanisms for soliciting and spending money on behalf of political campaigns are nonprofits.

  • From an editorial in the Tampa Bay Times: “Millions of dollars are flowing into nonprofit groups aligned with particular presidential candidates to influence voters with often misleading ads, and voters will never know who wrote the checks…The court rulings [such as Citizens United] opened the door for the creation of nonprofits that have little or no reason to exist except to promote political candidates with anonymous contributors.… [Senator Marco] Rubio is among several Republican presidential candidates benefiting from a political nonprofit operating under a facade of independence, and they often operate in tandem with a super PAC.”
  • From the Phoenix New Times: “So here’s a giant surprise, Pinal County Sheriff and unannounced candidate for U.S. Congress Paul Babeu is the ‘honorary chairman,’ of a dark money, 501(c)(4) nonprofit that is pimping…yes, you guessed it, Paul Babeu. Babeu’s new Arizona Security and Prosperity Project’s website promises that the group will pursue ‘public advocacy for enhanced border security, economic strength and individual liberty,’ and that, in so doing, the group ‘will be non-partisan, and will not advocate the election or defeat of any identified candidate for public office.’ And yet, the ASPP brazenly shills for Babeu, who has all but jumped into the fray in the GOP primary for Arizona’s First Congressional District.”
  • From the New York Times: “The chairman of Hillary Rodham Clinton’s presidential campaign will meet with a group of prospective donors to the ‘super PAC’ supporting her in New York City this week, according to an invitation to the event. John Podesta will be the featured speaker at a Manhattan event hosted by Bernard Schwartz, a longtime supporter of Mrs. Clinton. Guy Cecil, the chief strategist and co-chairman of Priorities USA Action, the super PAC, is also headlining the event. The appearance of Mr. Podesta marks a fresh level of engagement for senior campaign officials trying to help the super PAC increase its coffers. While no further meetings have been scheduled, Mr. Podesta is likely to do future events. ‘John Podesta is appearing at this event only as a special guest,’ the invitation says. ‘John Podesta is not asking for funds or donations.’ The event is similar to the type of meetings that advisers to President Obama, such as David Plouffe, held with potential donors to the super PAC in the 2012 cycle when it was backing the president’s re-election effort. While the campaign is banned from coordinating with the super PAC, campaign officials can appear at events as long as they don’t explicitly ask for money.”

There are plenty of other examples of 501(c)(4)s, PACs, campaign staffers, and candidates themselves blurring into one undistinguishable mélange of money and politics. Other than Lessig and his single-issue campaign, the only major candidates to abjure this structure, at least for the moment, are Bernie Sanders, who has rejected all big donors in his campaign, and Donald Trump, who is a self-financing billionaire who doesn’t seem to want or need campaign contributions, at least for the moment.

All of these campaign entities are tax exempt, which to the press and the public reads “nonprofit” or, worse, public charity. As Republicans and Democrats engage in the mud-wrestling of how far they can push a divided FEC and a feckless IRS on campaign finance, nonprofits have to stand up for democracy—which we believe is part of the nonprofit sectors Tocquevillian DNA—and for the integrity of the nonprofit sector and engage in their own campaigning: a firm condemnation of any and all candidates who feel free to engage in dark and dirty money politics.—Rick Cohen